Bettie Jean Whitmore v. O'COnnOr Management, Inc., and General Growth Management, Inc.

JOHN R. GIBSON, Circuit Judge, dissenting in part.

Because I believe that the record presents an issue of fact as to whether General Growth had actual or constructive knowledge that Bartee was harassing Whitmore during the time General Growth managed the mall, I respectfully dissent from Part III of the Court’s opinion.

The Court today concedes that General Growth’s managers knew of the earlier assaults. Supra at 798. Under Title VII, an employee’s work environment is evaluated as a whole, rather than by viewing particular events in isolation from each other. See Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir.1997) (“A work environment is shaped by the accumulation of abusive conduct, and the resulting harm cannot be measured by carving it ‘into a series of discrete incidents.’ ”). Therefore, even though General Growth was not responsible for the earlier incidents, its managers’ knowledge of Whit-more’s earlier ordeal is relevant to how those managers should have responded to later developments involving the same harasser and the same victim.

The Court today places undue reliance on Whitmore’s statement in her EEOC affidavit that she did not report the harassment to General Growth’s management between “July 1993 and January 1994” or after returning to work in April 1994 after an injury. This statement is not necessarily inconsistent with Whitmore’s deposition testimony that she reported Bartee’s staring to L.V. Wesley in July or August 1993. At any rate, it is possible for an employer to have notice of a situation without the victim herself reporting it. Moreover, Whitmore’s EEOC affidavit specifically mentions that she reported to General Growth the threat by Bartee’s sister.

Whitmore testified at her deposition that in the middle of July or beginning of August 1993, after General Growth had taken over the management of the mall on July 1, 1993, she complained to L.V. Wesley that Bartee was staring at her. Whitmore then reiterated her complaint when Bartee’s conduct did not improve. Wesley told her he reported her complaint to Sweeney. The majority gives Whitmore’s complaint no effect because, “Mr. Wesley is demonstratively not a part of General Growth’s management.” Supra at 800. However, the record demonstrates that Wesley was General Growth’s agent for the purpose of reporting complaints such as Whitmore’s; Mike Sweeney, a General Growth supervisor, agreed that, as Bar-tee’s lead person, Wesley had the duty to report to management “problems ... between employees for whom he was the lead person.” In Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir.1998), Bales complained of sexual harassment to Bollenbaugh, a person that Wal-Mart contended was “not Bales’s manager nor was she a supervisor.” Id. at 1110. However, we looked to deposition testimony that Bollenbaugh had “supervisory authority” over Bales and that it would be “appropriate” for Bales to complain to her. Id. We held that “[ajlthough [Bollen-baugh was] not the most senior management person to whom Bales might have complained,” there was sufficient evidence that Wal-Mart knew or should have known of the harassment. Id. Similarly, the deposition testimony in this case shows that Wesley had supervisory authority over Bartee and that it was Wesley’s duty to report problems with Bartee up the chain of command.

Moreover, Wesley reported enough to put General Growth’s management on notice about the staring. Hibben testified that Mike Sweeney told him, “Bettie believes that Marcel is watching her from the shadows or from the corners, or something along those lines.” Hibben was not able to tell when he had this conversation with Sweeney. Nevertheless, his statement fits with Whitmore’s testimony that she told Wesley of the problem in July or August 1993 and Wesley said he would report it to Sweeney. Taking these statements all together, a jury could infer that Hibben knew of the problem at about that time.

*802Hibben also testified that he knew of the defamatory statements Bartee was making about Whitmore.2 Hibben defended his failure to do anything about the situation, saying the information was “just hearsay” and there was “no proof.” If nothing else had happened between Bartee and Whitmore, this might be excusable. But in fact, Hibben knew that Whitmore had already suffered “sexual harassment of the severest possible sort,” supra at 800, from Bartee. In this context, a jury could find his failure to investigate reports of further misconduct was willful blindness.

Additionally, the record is clear that Hib-ben knew of the threat by Bartee’s sister in August 1993. The sister came to the mall and threatened Whitmore, either carrying or pretending to carry a gun. Whitmore testified that Hibben was nearby when the incident occurred, and that Whitmore “got [her] bag” and “ran over” to Hibben and told him the sister “had threatened me.” Considering that Whitmore had accused Bartee of assaulting her and that Bartee was being prosecuted criminally, a trier of fact could find that the threat was attributable to Bartee. More to the point, the trier of fact could also find that a link between Bartee and the threat should have occurred to Hibben. In fact, it did occur to him, since he said to Whitmore, “ I thought all that stuff was over with between you and Marcel.” According to Whitmore, Hibben then offered to send a security guard to escort Whitmore to her bus, and walked away. If Hibben thought Whitmore needed a security guard to escort her to her bus that day, a jury could find that he should have taken further action. At the very least, General Growth should have investigated this incident to determine if Bar-tee was behind the threat, and for that matter, to find out more about the nature of the threat.

The Court today dismisses General Growth’s knowledge about the threat, stating, “The fact, if it is one, that Mr. Hibben knew that Mr. Bartee’s sister had threatened Ms. Whitmore in some unspecified way, is hardly sufficient to put General Growth on notice that Mr. Bartee had continued to harass Ms. Whitmore sexually.” Supra at 800. Here, the evidence supports a finding of a threat of retaliation against an employee by a person who has already committed two sexual assaults against that employee. I will not attempt to catalog the cases in which we have upheld harassment claims for less severe conduct, but by way of example I compare Whitmore’s claim to that in our recent case of Rorie v. United Parcel Service, Inc., 151 F.3d 757 (8th Cir.1998). There, we said: “[W]e cannot say that a supervisor who pats a female employee on the back, brushes up against her, and tells her she smells good does not constitute sexual harassment as a matter of law.” Slip op. at 800. General Growth had notice that Whitmore was still being threatened at work after having been sexually assaulted twice at work, and that she was afraid. In my opinion, this is more egregious than being told she smelled good, and it is sufficient to go to a jury.

Finally, there is Shannon Driscoll’s testimony that after being charged with the assault Bartee would stand in the mall and stare at Whitmore for twenty minutes at a time. Driscoll described Bartee as watching Whitmore “to the point of where I would almost call it stalking.” The standard for negligence liability is that the employer knew or should have known of the harassment and failed to remedy it. Varner v. National Super Markets, Inc., 94 F.3d 1209, 1213 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 946, 136 L.Ed.2d 835 (1997); Hall v. Gus Const. Co., 842 F.2d 1010, 1015-16 (8th Cir.1988); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 673-75 (10th Cir.1998); see generally Faragher v. City of Boca Raton, - U.S. -,-, 118 S.Ct. 2275, 2289, 141 L.Ed.2d 662 (1998). I believe this case presents a jury issue as to whether General Growth should have known of Bartee’s conduct.

. Bartee had been saying that Whitmore was his prostitute.